Opinion
6 Div. 196.
July 14, 1928. Rehearing Denied October 25, 1928.
Appeal from Circuit Court, Jefferson County; John Denson, Judge.
E. L. All, John S. Coleman, Douglas Arant, and Bradley, Baldwin, All White, all of Birmingham, for appellant.
The tax imposed under schedule 74 is an excise tax. Flint v. Stone Tracy Co., 220 U.S. 107, 31 S.Ct. 342, 55 L.Ed. 389, Ann. Cas. 1912B, 1312; 1 Cooley, Taxation (4th Ed.) 126; Spokane E. T. Co. v. Spokane County, 70 Wn. 48, 126 P. 54, Ann. Cas. 1914B, 641. The inspection tax under the Act of 1920 (Gen. Acts, Sp. Sess. 1920, p. 117) was not an excise tax. Standard Chem. Oil Co. v. Troy, 201 Ala. 89, 77 So. 383, L.R.A. 1918C, 522; State v. Parker, 5 Ala. App. 231, 59 So. 741; 4 Cooley, Taxation (4th Ed.) §§ 1670, 1787. The tax imposed under schedule 74, and that imposed under the Act of 1923, are essentially the same, in effect imposing an excise tax on the occupation of selling gasoline. Authorities, supra; Hawkins v. L. N. R. Co., 145 Ala. 385, 40 So. 293; Wade v. State, 207 Ala. 1, 92 So. 101; Lee v. State, 10 Ala. App. 191, 64 So. 637; Ex parte Dunlap, 71 Ala. 73; Board of Rev. v. Gas Light Co., 64 Ala. 269; Freeman v. State, 115 Ala. 212, 22 So. 560; 1 Cooley, § 266; Wetmore v. State, 55 Ala. 201; State v. Henderson, 199 Ala. 244, 74 So. 344, L.R.A. 1917F, 770; U.S. v. Johnston, 124 U.S. 236, 8 S.Ct. 446, 31 L.Ed. 389; 2 Lewis' Sutherland, Stat. Const. (2d Ed.) § 474; 36 Cyc. 1140, 1141. Schedule 74 is clearly repealed by section 13 of the Act of 1923. Authorities, supra. Statutes levying taxes must be construed most strongly against the government and in favor of the citizen. Double taxation is never to be implied unless the implication is unavoidable. Gould v. Gould, 245 U.S. 151, 38 S.Ct. 53, 62 L.Ed. 211; U.S. v. Merriam, 263 U.S. 179, 44 S.Ct. 69, 68 L.Ed. 240, 29 A.L.R. 1547; 36 Cyc. 1189; 37 Cyc. 768; Bluff City R. Co. v. Clarke, 95 Miss. 689, 49 So. 177; Board of Rev. v. Gaslight Co., supra; Freeman v. State, supra; 1 Cooley, § 226.
Horace C. Wilkinson and Forney Johnston, both of Birmingham, for the State.
The tax imposed by schedule 74 is clearly an occupation tax, to be paid for the privilege of engaging in business as a wholesaler of gasoline. The Act of 1923 repeals other excise and inspection taxes on the sale of gasoline, and the occupation tax imposed by schedule 74 is not a tax on the sale of gasoline, within the meaning of the repealing clause of the Act of 1923. Panhandle Oil Co. v. State of Miss. 277 U.S. 218, 48 S.Ct. 451, 72 L.Ed. 857, 56 A.L.R. 583. While a statute may be repealed by implication, the general doctrine is that, where the new law covers the whole subject-matter of the former, is inconsistent with it, and evidently intended to supersede and take the place of the former, it repeals the old law by implication. Allgood v. Sloss-Sheffield S. I. Co., 196 Ala. 500, 71 So. 724; Woco Pep Co. v. Montgomery, 213 Ala. 452, 105 So. 214; Pillans v. Hancock, 203 Ala. 570, 84 So. 757. But the Act of 1923 in no sense purports to cover the entire subject-matter of the license schedule of 1919 relating to dealers in gasoline and other motor fuels. The incidence of the taxes imposed by the schedule is upon the dealer; the incidence of the excise tax under the Act of 1923 and as amended is upon the consumer. The fact that property once taxed may be used in connection with a distinct business or occupation, directly or indirectly, does not prevent a privilege tax upon the business or occupation. Republic I. S. Co. v. State, 204 Ala. 469, 86 So. 65. For distinction between a privilege license or occupation tax and a commodity sales tax, see Coulson v. Harris, 43 Miss. 728; Youngblood v. Sexton, 32 Mich. 406, 20 Am. Rep. 654.
While Schedule 74 of the Acts of 1919, p. 424, may be termed an excise tax and may be an occupation tax, the amount of same is to be fixed or measured by the sum of the gross sales of the oils there mentioned for the preceding year and may not, technically speaking, be a tax on the sales, yet in its general result it rests on the sale of said oils. If there were no sales the preceding year, there would be no tax, and, if there were sales, there would be a tax based on same fixed at one-half of one per centum on the gross sales.
The repealing clause of the Acts of 1923, p. 39, reads as follows:
"All other state excise and inspection taxes on the sale of gasoline imposed before the passage of this act shall be and the same are hereby repealed, and all state laws and parts of laws in conflict with the provisions of this act are hereby repealed."
Whatever name may be given the tax as provided by Schedule 74, it is a tax based on the sale of the oils therein mentioned, including gasoline. If there is no sale, there is no tax, and, whether the tax be on the sale or on the occupation, it is based upon and fixed by the sale of the commodities, and we do not think the repeal of same can be escaped upon the technical theory that the repealing clause applies only to a tax on sales, and not to such a tax as provided by Schedule 74 on the business of selling oil.
The language of the repealing clause of the act of 1923 covers the case here presented. The tax of Schedule 74 of the act of 1919 is confessedly an excise. We have shown it is based on sales, and therefore meets that feature of the repealing clause. Therefore it must follow that Schedule 74, being an excise tax based on sales, comes squarely within the language of the repealing clause.
The act of 1920 (Acts 1920, p. 117) is solely an inspection law and a police regulation. The repealing clause could not be limited therefore to such inspection law. To give the words "other * * * excise * * * taxes on the sale of gasoline" any operation whatever, they must be held to apply to Schedule 74, as Schedule 74 of the act of 1919 and the inspection law of 1920 were the only ones then in force as to gasoline.
To hold in conformity to the contention of the state would be to ignore the above-quoted significant language of the repealing clause. It is not to be presumed the Legislature has used language without any meaning or application whatever.
We think that section 13 of the act of 1923 expressly repeals Schedule 74 of the act of 1919 as to gasoline and so hold.
The trial court erred in rendering judgment for the plaintiff, and the judgment of the circuit court is reversed, and one is here rendered in favor of the defendant.
Reversed and rendered.
All the Justices concur.